Lloyd v. Weimert

• Decision Date: 06 May 1970
• Docket Number: No. 1268A203,No. 1,1268A203,1
• Parties: Cliff LLOYD, Kathryn Lloyd, Appellants, v. Mary WEIMERT, Appellee
• Court: Indiana Appellate Court

Page 851

257 N.E.2d 851

146 Ind.App. 666

Cliff LLOYD, Kathryn Lloyd, Appellants, v. Mary WEIMERT, Appellee.

No. 1268A203.

Appellate Court of Indiana, Division No. 1.

May 6, 1970.

Carl J. Sandy, Littell & Carey, Lafayette, for appellants.

Robert A. Mucker, Lafayette, for appellee.

COOPER, Judge.

This is an action brought in Tippecanoe County Circuit Court by appellee, plaintiff below, for damages as a result of personal injury allegedly suffered by said appellee while employed in the home of the appellants, defendants below. The complaint alleged that appellee received injuries while working as an employee of appellants when she tripped over a dropcloth left on the stairway and fell down the stairs and that said injuries were caused by the negligence of the appellants as follows:

(1) Appellants failed to remove plastic dropcloth;

(2) Appellants failed to give appellee any warning of the presence of said plastic dropcloth;

(3) Appellants failed to give appellee any warning that said plastic dropcloth was not fastened to said stairway;

(4) Appellants failed to give appellee any warning that said plastic dropcloth was slick;

(5) Appellants failed to provide a safe and proper means for appellee to get from one floor to the other;

(6) Appellants failed to provide a safe and proper place for appellee to perform her duties to appellants as such domestic and baby sitter;

(7) Appellants failed to advise appellee of a change in the condition of the stairway when they should have known she would be using said stairway.

The appellants, in compliance with Rule 1--3 of the Rules of the Supreme Court of Indiana, filed an answer denying appellee's material allegations.

The cause, thus being at issue, was submitted to the jury for trial, findings, and judgment.

The jury made its finding for plaintiff-appellee and awarded her damages in the amount of $20,000 and costs. Judgment was entered accordingly.

The appellants' motion for a new trial alleged as error the following:

(1) There was misconduct on the part of the jury in discussing during its deliberation the fact that the defendants carried liability insurance;

(2) The damages assessed are excessive;

(3) The verdict of the jury is not sustained by sufficient evidence;

(4) The verdict of the jury is contrary to law;

(5) There was error of law at the trial in that:

(a) The trial court erred in overruling defendants' motion for a mistrial when plaintiff referred to insurance during redirect examination by her attorney, and

(b) The court erred in giving the jury plaintiff's instruction No. 3;

(6) The court erred in overruling defendants' motion for a directed verdict at the close of the plaintiff's evidence (7) The court erred in overruling the defendants' motion for a directed verdict at the close of all the evidence.

The assignment of error on appeal is that the trial court erred in overruling the motion for a new trial.

The appellee, Mrs. Weimert, worked for the appellants two days per week as a housekeeper and baby sitter. Upon arrival on the morning of the accident, appellee was instructed to pay particular attention to the needs of the appellants' baby as he had been sick during the night. Appellee stated that she heard the baby crying later that morning and hurried upstairs to check on him. Appellee was upstairs approximately twenty minutes, during which time she attended to the baby and gathered dirty sheets and clothing for the wash. Upon proceeding down the steps carrying the dirty laundry, appellee tripped on a tarpaulin on the steps and fell to the first floor.

The evidence shows that the appellants had had their hall painted and that the painters, under appellants' instruction, had left the tarpaulin on the stairs. The evidence further shows that the appellants had not informed the appellee that the tarpaulin was on the stairs, although the appellants had discussed the danger of someone falling over it and had warned their children to be careful. The appellee stated that she had not seen the tarpaulin that morning as she was working in the back of the house. The appellee also testified that she did not notice the tarpaulin as she ascended the stairs as her mind was preoccupied with the crying baby.

As a result of the fall, the appellee was off work for approximately four weeks, suffered back and head pains, and was later operated upon for medical complications which were attributed to this fall. Except for the four-week period just after the fall and for the recuperation period following the operation, appellee has been working. The appellee testified, however, that she has not been able to resume any heavy housework, as a result of which she has found it more difficult to find suitable work, and therefore has suffered loss of income.

Appellee filed a Motion to Dismiss appellants' appeal for failure to comply with the Rules of the Supreme Court of Indiana. Appellee alleges that no notice of appellants' application for extension of time within which to file the transcript and assignment of errors was served on appellee as required by Rules 2--2 and 2--16. Also, appellee contends that appellants failed to file an affidavit of mailing of such application to appellee as required by Rule 2--15A. Appellee's Motion to Dismiss was considered by the court and held in abeyance until the matter was decided on the merits.

This court realizes that the Supreme Court Rules have the force and effect of law and are binding on the court and litigants alike, Hayes v. Pennick (1965) 137 Ind.App. 55, 204 N.E.2d 882; Eggers v. Wright et al. (1969) Ind., 245 N.E.2d 331, and should, in the interest of clarity, efficiency, and justice, be complied with. However, this court prefers, whenever possible, to consider a case on its merits, rather than on mere technicalities. Miller, etc. v. Ortman, etc., et al. (1956) 235 Ind. 641, 136 N.E.2d 17 (Reh. Den.); Capp v. Lindenberg, etc., et al. (1961) 242 Ind. 423, 178 N.E.2d 736 (Reh. Den.); Burton v. Rock Road Construction Co. (1968) 142 Ind.App. ---, 235 N.E.2d 210 (Tr. Den.); Hopple et al. v. Star City Elevator Co., Inc., et al. (1967) 140 Ind.App. 561, 224 N.E.2d 321 (Tr. Den.).

In the case before us, we find several procedural errors. While this court can find ample authority to support a dismissal, we feel that in light of the new Indiana Rules of Procedure, a more liberal approach to procedural errors should be taken where possible. This court notes that we do have jurisdiction in this matter as appellants timely asked for and were granted an extension of time in which to file the transcript and assignment of errors. Also, the appellee has claimed no prejudice or harm as a result of appellants' errors. Therefore, this court now overrules appellee's Motion to Dismiss, and we shall proceed to consider this cause on its merits.

In their motion for a new trial, appellants raised as error (1) that there was misconduct on the part of the jury in discussing the fact that the defendants carried liability insurance, and (2) that the trial court erred in overruling defendants' motion for a mistrial when plaintiff referred to insurance. These two errors were not argued by appellants nor did they cite any authority to support either of these alleged errors as required by Rule 2--17(h), Rules of the Supreme Court, 1967 edition. Thus, these alleged errors are deemed waived on appeal. Doi v. Huber (1969) Ind.App., 247 N.E.2d 103 (Tr. Den.); Indianapolis Morris Plan Corp. v. Sparks (1961) 132 Ind.App. 145, 172 N.E.2d 899 (Tr. Den.).

The appellants allege as error that the verdict is not supported by sufficient evidence and is contrary to law. The appellants claim that the appellee was guilty of contributory negligence in that she had a duty to exercise reasonable care to discover dangers which arose in the course of her job. Appellants also contend that the appellee assumed the risks naturally incident to her employment, part of which would be objects left on the stairway.

In the case of Deming Hotel Co. v. Prox (1968) Ind.App., 236 N.E.2d 613, at page 618, the position of this court in reviewing the appellants' contention is stated:

'When the sufficiency of the evidence is questioned on appeal, this court does not weigh the evidence, but reviews the record to see if there is any evidence or any reasonable or logical inference which may be drawn from the evidence, which if believed by the jury, would sustain the verdict. Gamble et al. v. Lewis (1949) 227 Ind. 455, 460, 85 N.E.2d 629; Indiana Ins. Co. v. Handlon (1940) 216 Ind. 442, 24 N.E.2d 1003.

'The Appellant's charge that the verdict of the jury is contrary to law, is subject to the general rule of law as stated by our Supreme Court in the case of Pokraka et al. v. Lummus Co. (1952) 230 Ind. 523, 532, 104 N.E.2d 669, that we may consider only the evidence most favorable to the appellee in a cause, and it is only where the evidence is without conflict and can lead to but one conclusion and the trial court or jury has reached an opposite conclusion, that the decision of the trial court or jury will be set aside on the grounds that t is contrary to law. See also, Hinds, Executor of Estate of Sickels, Deceased, etc. v. McNair et al. (1955) 235 Ind. 34, 129 N.E.2d 553.'

A review of the record shows that the parties presented evidence on the following points.

The appellants argued that the tarpaulin was in plain view and that appellee should have seen it. The appellants also stated that the tarpaulin on the stairs was a risk incident to her employment and that by not picking it up, she assumed the risk of injury. The appellee rebutted that a tarpaulin on the stairway is not a normal risk incident to housework and that appellants should have warned her of its presence. The appellee also stated that her mind was preoccupied with the crying baby and therefore she did not notice the tarpaulin as she climbed the stairs.

We find that reasonable minds could differ concerning whether...